Simon Gibbs talks about how people “without means” to enjoy the video can read the text and summary instead. But it isn’t only those who are technically prevented from watching video who will appreciate text instead. Some just prefer text.

Concluding paragraph of the summary:

The talk does not suggest that there is a definite “right” or “wrong” answer, although having considered many of the arguments, I am more favourable to IP than I had expected when I started to explore this issue. It is hugely relevant: patent fights, for example, are frontpage news concerning firms such as Apple. And copyright fights feature regularly in the music and movie business.

Like I said, Burroughes sat on the fence. Watch the start of the video and you’ll see that SImon Gibbs introduced him by saying he would climb down off the fence and tell us all what to think. No such luck.

April 12th, 2012 |

10 comments to Tom Burroughes on IP – video and talk text now available

Did I say Tom would be off the fence? That wasn’t my intention, I do feel though, that it would be useful to be coherent on the issue since it engages a lot of public passion, and that we can piggy back that to introduce broader ideas into the public discourse.

I think Tom’s talk certainly contains enough material and further reading to help a few libertarians make up their minds on the problem, even if Tom stays on the fence.

It is not really a “for” or “against” question, so much as a “how much” question. This is one of those subjects about which the simple positions to take are actually the extreme positions, and the muddled positions are possibly the reasonable ones. This is one reason why we argue so much about it, I think.

I happen to disagree, Michael, to an extent. I think that the reason most people argue about it so much is that the issue is mostly muddled by other factors. Although for those who acknowledge its existence, the overall principle of IP applies to all spheres of human creativity (art, literature, music, technology, philosophical or any other ideas), because of the differences in the physical incarnations inherent in these different spheres, over time different societies came to treat these spheres differently, and so did governments. An example of one such difference is that between content and its sharing, and patents. Then, within patents, you have inherent differences between classical technological patents, and modern pharmacology. And then you have the human genome, and so on. And, in the sphere of content, you have inherent differences between, literature and music, and paintings, and so on. Needless to add, wherever governments stepped in, they only contributed to the overall muddleness, confusion and animosity, because they were neither able, nor willing, to tailor a custom solution to every problem that by its very nature is very different. So they treat apples as if they were oranges, either due to mere ignorance, or due to political pressure applied by various interests (my guess is due to both). But none of the above in and of itself detracts from the existence of IP as an underlying principle in all of these issues.

Where I think I agree with you, is that because of the inherent physical nature of some of these spheres of human creativity, the IP principle may often prove unenforceable, if one is careful not to violate the wider principle of private property – in other words, not to throw the baby out with the bathwater. It is similar to the idea that we are not going to install a surveilance camera in every household just to make sure no one is going to abuse his wife or children. So if that is what you meat by ‘how much’, I agree.

I don’t think that the analogy from physical property to intellectual property holds very well. In the case of physical property, if I have something you can’t have it. In the case of intellectual property, that does not hold. I pretty much completely reject natural justice arguments of any kind in favour of intellectual property. (And I have never liked the expression “intellectual property” either, because it makes a false analogy that implies that there is a natural justice justification, when I am not sure that there is).

I favour a purely utilitarian model for intellectual property. If the presence of intellectual property law leads to more (and/or better) creative work being done, then intellectual property law is good. If not, then not. Against that, intellectual property law is essentially about the state granting monopolies, and these are bad, bad, bad for all the same reasons that state granted monopolies in anything else are bad. The two things need to be balanced – the greater innovation that comes from providing a reward for innovation, and the negatives (including restrictions on further innovation that comes from preventing other people from developing derivative works) that come from granting monopolies.

The balance point between these two things is inevitably going to be different for different kinds of creativity and innovations, and where it is is really only going to be discovered empirically. So a muddle is inevitable, and probably good, I think.

Unlike Michael, I have no problem with calling ideas ‘property’ so long as one considers their ownership as a separate issue. Calling an idea, be it an invention, a song or any other creation of the mind ‘property’ does not invoke a necessity of ownership although it does allow a claim.

I’ve said elsewhere (many elsewheres?) that the boundaries between individual human beings (selfs) are something that individuals, being individuals, will all see differently. There is no rational moral basis to compel everybody to accept my prescribed location for those boundaries. If they are individuals, then I have no claim over their judgment and if we are a collective, there are no boundaries.

Intellectual property is one of those things that is in the contested boundary area between selfs. I do not buy into any ‘natural rights’ arguments because on careful analysis of their foundations they are indistinguishable from religious beliefs. All claims I make to my own life, liberty and property are only as strong as they are respected by others. In order to assert these claims I make to my own life, liberty and property, I seek out and associate with others who make similar claims to their own lives, liberty and properties and enter into mutual respect and defense agreements. These agreements can take the form of constitutionally restrained, limited governments.

All that to get to the point that intellectual property, as with all other property, is properly defined by these mutual respect and defense contracts, whatever form they take.

So, I have no claim to defense of my IP against anybody outside my constitutional contract and owe no allegiance to any claims against me by someone outside of my constitutional contract (unless our respective constitutional contracts have an IP treaty in which case its terms govern). So if a person not part of my constitutional contract wants to rip and distribute my songs, I have no recourse beyond the members of my own contract (save by treaty).

This means that intellectual property becomes a matter of consent to a constitutional contract and, as such, can have any or no basis. Everybody who accepts the IP terms of a contract will have their own reasons for deciding to accept those terms. Some will like them some will not. But if they dislike them enough, they should not join and claim the other protections and benefits of that constitutional contract.

As for my personal, individual provenance for the origin of IP rights, it is a pragmatic one that starts from a principled basis. 1- I have a secret. 2- nobody may take that secret from me by force. 3- I can agree to share that secret on specifically negotiated terms with other individuals. 4- if they violate those terms, I have a claim against them for the lost value they cost me. 5- this has the easy possibility to get really messy in the case of things like music recordings. 6- the constitution I join contains terms protecting IP as a practical matter in order to encourage sharing and to advance intellectual endeavor as an activity among the members of the constitutional contract.

As a practical matter, the various forms of IP should be handled with a simple guiding principle in mind. They should respect that the IP would only have been the creator’s own secret until somebody else had the same idea. In the case of patents, this can and general should be for comparatively short periods of time because many minds are all motivated to solve ‘the next obstacle’ in their respective fields. The probability of somebody having the same idea within a few years is very high. In the case of Hamlet or B’s 7th symphony, that interval is likely to be indefinite and the protection should run a very long time.

One point that should be obvious and unnecessary (but regrettably is not apparent to the patent issuing authorities) is that discoveries are not inventions. Patenting hunks of discovered genome is as ridiculous as patenting crude oil. But a fractionation process or a carburetor is an invention and should be protectable.

I don’t think that the analogy from physical property to intellectual property holds very well.

I don’t think that I am asserting any such analogy. I think that many, if not most people are misunderstanding what property is: property is a right to use something – it is not the thing itself. Although for many intents and purposes the term can be and is being used interchangeably, it is important here to make that distinction. If this point is understood, it becomes obvious that whether the thing itself is tangible or not is beside the point – as is the rivalrous-use nature of the thing or lack thereof. So, FWIW, I actually agree with you – albeit maybe not on your own terms – in that there’s no such thing as ‘intellectual property’ or ‘phisical property’. There’s property, period. Things subject to the right to use that is property can be tangible or intangible, their nature may be such that they can be used simultaneously by several people, or it may not be. These questions are irrelevant to the idea of private property and its huge importance to society.

In the case of physical property, if I have something you can’t have it. In the case of intellectual property, that does not hold.

Just to demonstrate the supposed difference between “physical property’ and ‘intellectual property’ on the basis of the former not lending itself by its nature to rivalrous use: you go on a year-long vacation, and you give me the key to your house under the conditions that when you come back, you won’t be able to tell that I lived there, and also that I will not sublease it. I live there for a month, and then give the key to Mid and he lives there for a month, and then gives the key to Perry, and after a month Perry gives the key to Brian, and so on, and so forth. After a year, 12 people lived in your house, all managed to leave it in precisely the same condition you left it. This is exactly the same case where I buy a legal copy of Windows XP from Microsoft, and then give it to 11 friends to install on their computers.

I do agree with you on all the points regarding governmental actions, laws, regulations, legal monopolies etc. But you probably would not be shocked by the idea that the defense of private property is not necessarily the governments’ first priority. I’ll paste here my comment from a previous thread on IP on the practical aspects of the issue:

The best way to deal with all IP issues, in my view, is exclusively through contract law. The issue of IP as it pertains to content sharing is currently being so covered, at least implicitly: when one buys a CD or a book, one implicitly agrees to the restrictions which are placed by the content’s owner on the ways the buyer may use the content (how these contracts should or even can be enforced is a separate question*). Because of their different nature, patent issues are currently dealt with differently (in my opinion incorrectly, as JP points out, but that is also a separate question).

*Under no circumstances the liberties of uninvolved** individuals or organizations should be infringed in order to enforce other parties’ contracts. If, due to physical limitations inherent in the content in question, enough content owners find their contracts to be unenforceable, they will be forced to look for other ways to protect their property (most likely to be found in new technologies).

**Someone who knowingly acquires stolen content is not an ‘uninvolved’ party.

Is somebody who is given something as a gift an “involved party”? Can the act of accepting a gift make you subject to a complex contract with somebody other than the person giving you the gift? Contract law traditionally says no, and I think it may be right to do so. However, this makes it difficult to deal with such matters entirely through contract law.

I have already conceded that it may be difficult to deal with these matters through any legal means. But just because something may not be enforceable does not make it right. Would you tolerate me subletting your flat against clear stipulation to the contrary in our contract even if I did not charge money for it?

So I rent a car under strict terms as to time and place of use and not allowing anybody else to drive the car.

Now I give the car to you as a gift.

Does receiving the car as a gift from me make you subject to the terms of my contract with the car company?

The answer is generally only in the governing jurisdiction of the broken contract (USA in this case) and if I get the car to another jurisdiction that does not have a treaty regarding such things (Somalia?) to make the gift then you have a nice car and I’ve got even worse problems.

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